Before FEINBERG, Chief Judge, VAN GRAAFEILAND, and PRATT, Circuit Judges.
These two appeals have been consolidated by this court sua sponte pursuant to Fed. R. App. P. 3(b) for purposes of this opinion. In one of the appeals, Jones v. Smith, et al., we granted Jones leave to appeal in forma pauperis in three of sixteen separate actions brought under 42 U.S.C. § 1983 to challenge various aspects of the conditions of his prison confinement. All of the complaints had been dismissed by the United States District Court for the Western District of New York. Jones's three actions that we address here are brought respectively against defendant Smith, who is Superintendent of the Attica Correctional Facility, defendant O'Connor, who was the presiding officer at Jones's prison disciplinary hearing, and defendant Cousins, who is in charge of the mail room at Attica. We note that Jones's action against Smith was also nominally brought against Thomas A. Coughlin, III, as New York State Commissioner of Corrections. However, Jones's allegations in that complaint refer to only Smith, and, therefore, we deem the complaint to be brought against only Smith. In the other appeal, Payne v. Coughlin, Payne appeals from a judgment of the United States District Court for the Southern District of New York dismissing his complaint against various prison officials.
Both Jones and Payne are currently incarcerated in the New York State prison system. Both are prolific pro se litigators. Here, they separately challenge the New York Department of Correctional Services's directive 4422, which regulates, among other things, the amount and type of free prisoner mail. They assert that directive 4422 denies them their constitutional right of access to the courts, as that right was construed in Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). Appellants' claims were summarily dismissed by their respective district courts. Because substantial questions concerning directive 4422 remain to be answered in light of our remand in Chandler v. Coughlin, 763 F.2d 110 (2d Cir. 1985), we remand appellants directive 4422 claims to their respective district courts for further proceedings. The dismissals in Jones v. Smith, W.D. Docket No. CIV-83-1287, and Jones v. O'Connor, W.D. Docket No. CIV-84-1149, are affirmed.
A. The Directive 4422 Claims
In May 1985 a panel of this court remanded Chandler v. Coughlin, 763 F.2d 110, 115 (2d Cir. 1985), to the United States District Court for the Southern District of New York to consider Chandler's allegations, which had been dismissed on summary judgment, that directive 4422 of the New York State Department of Correctional Services, known as the Inmate Correspondence Program, violated her right of access to the courts. Under paragraph III.D. of directive 4422:
1. The Department will provide free regular first class postage for five letters of one ounce or less per letter per week to all inmates. * * * Inmates may send more than five letters a week, but will be required to pay postage for all correspondence in excess of five letters in any week. Inmates may not accumulate credit for unused postage.
3. All postage for items such as packages, legal briefs, letters in excess of one ounce, or any other form not covered by Item 1 will be sent at the expense of the inmate. * * *
Chandler, 763 F.2d at 112. Following remand, Chandler was reassigned within the southern district to Thomas P. Griesa, Judge.
In the instant appeals we are presented with similar challenges to directive 4422. Pursuant to Fed. R. App. P. 3(b), we have consolidated these appeals for purposes of this decision. In Payne v. Coughlin, the United States District Court for the Southern District of New York, Robert L. Carter, Judge, adopting the recommendation of Magistrate Tyler, granted defendant Coughlin's motion for summary judgment. In Jones v. Cousins, W.D. Docket No. CIV-84-677, the United States District Court for the Western District of New York, Michael A. Telesca, Judge, dismissed plaintiff's claim sua sponte under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. However, as we stated in Chandler, "we doubt that * * * questions as to the reasonableness of Directive 4422 are susceptible to resolution against the plaintiff on summary judgment", 763 F.2d at 115; we therefore remand both of these actions so that plaintiffs' substantive claims with respect to directive 4422 may be properly addressed.
Given the volume of prisoner litigation in our courts, claims alleging denial of access to the courts due to directive 4422 will undoubtedly multiply until this issue is revolved. Indeed, Jones has called our attention to yet another case of his that is also pending in the Western District of New York, Jones v. Passomonte, W.D. Docket No. CIV-84-963, which he asserts raises this same issue. Therefore, in the interest of judicial economy and in the hope of avoiding repetitive and potentially conflicting dispositions of this important matter, we suggest, without ordering, that the parties and the district judges handling these cases cooperate in obtaining a prompt, definitive disposition of this issue. Among the possible courses of action that might be considered are class action certification in one of the cases, transfer and consolidation of cases, and appropriate stays in some actions pending disposition elsewhere of the directive 4422 issue.
The questions presented by these cases make them potential candidates for treatment through a class action under Fed. R. Civ. P. 23. Although not yet certified as a class action, the complaint in Chandler was "filed on behalf of all indigent inmates of New York State correctional institutions who wish to file papers in a court". 763 F.2d at 111.
Efficiency might also be achieved by transfer pursuant to 28 U.S.C. § 1404. Two of these cases, Chandler and Payne, are pending in the Southern District of New York, and two, Jones v. Cousins and Jones v. Passomonte, in the Western District of New York. If transferred and consolidated before one ...